Tom Lee makes an interesting point about the satellite case I wrote about on Saturday: the problem facing EchoStar and other satellite manufacturers is strikingly similar to the challenges that have been faced for many years by video game console manufacturers. There’s a grey market in “mod chips” for video game consoles. Typically, they’re sold in a form that only allows them to be used for legitimate purposes. But many users purchase the mod chips and then immediately download new software that allows them to play illicit copies of copyrighted video games. It’s unclear exactly how the DMCA applies in this kind of case.
But as Tom notes, this dilemma is likely to get more common over time. As hardware gets cheaper and more powerful, companies are increasingly going to build their products using off-the-shelf hardware and custom software. And that will mean that increasingly, the hardware needed to do legitimate reverse engineering will be identical to the hardware needed to circumvent copy protection. The only way to prevent people from getting their hands on “circumvention devices” will be to prevent them from purchasing any hardware capable of interoperating with a manufacturer’s product without its permission.
Policymakers, then, face a fundamental choice. We can have a society in which reverse engineering for legitimate purposes is permitted, at the cost of some amount of illicit circumvention of copy protection schemes. Or it can have a society in which any unauthorized tinkering with copy-protected technologies is presumptively illegal. This latter position has the consequence of making copy protection more than just a copyright enforcement device (and a lousy one at that). It gives platform designers de facto control over who may build hardware devices that interoperable with their own. Thus far, Congress and the courts have chosen this latter option. You can probably infer from this blog’s title where many of its contributors stand.
So your comment that “We can have a society in which reverse engineering for legitimate purposes is permitted” implies that there are some purposes that you might consider “illegitimate.” Care to elaborate?
Sure. If you’re reverse engineering a voting machine for the purpose of stealing an election, I would regard that as illegitimate.
That would be a failure of the voting machine, and the illegal part would be the stealing of the election not the reverse engineering.
Reverse engineering a voting machine to find security flaws should be a legitimate activity. Stealing elections, however it is done should not.
Same as driving a getaway vehicle in a bank robery is a crime, but driving away from the airport is not.
Which is what I said: reverse engineering for legitimate purposes (i.e. security research) should be legal, while reverse engineering for illegitimate purposes (i.e. stealing elections) should not.
I learned quite a bit about electronics before college by taking apart and reasembling ( often unsuccesfully ) most of the electronics my father felt safe to leave around the house. I can’t imagine doing the same in a future where reverse engineering is illegal. We may develop have a society where the only practicall knowlege of building things will be found within the research labs of large multinationals.